Sometimes an event, condition, or circumstance might make it impossible for a patient to interact with his doctor: an accident, an illness, medication to control pain, recent surgery, or the effects of anesthesia. Under such circumstances, the ability to listen to his doctor’s explanation of treatment choices and to reasonably evaluate alternatives can be significantly impaired.
If a person is suffering from Alzheimer’s or other dementia, he may not be able to interact with the healthcare providers and cannot give informed consent to a proposed form of treatment. Many people choose to anticipate these types of incapacity and name an agent to act for them regarding healthcare decisions. Advance Directive for Healthcare comes into effect when the individual is in a permanent state of unconsciousness or is incompetent and terminally ill. An Advanced Directive will only be valuable when it comes to “end of life decisions.” However, there are many other healthcare decisions that come up before an Advanced Directive would be effective. Therefore, you also need to have a Durable Healthcare Power of Attorney that formally records your choice of agent to make healthcare decisions for you when you cannot.
Once again, you should name an alternate agent in case your agent is unavailable or is no longer willing or able to act on your behalf. In addition, your signing of your Durable Healthcare Power of Attorney should be witnessed by two adult individuals and it should be notarized. Because people are living longer nowadays, there is a great probability that you will have some period of incapacity, whether temporary or long term. Since an Advance Directive (Living Will) only comes into use at the very end of one’s life, a Durable Healthcare Power of Attorney is needed to cover the much larger period of time between intellectual incapacity and your last days.
Sometimes Alzheimer’s or other progressive mental, emotional, or physical illnesses can rob a person of the ability to make personal, financial, legal, and healthcare decisions, and to keep themselves safe. In the worst cases, individuals can become victims of others who see opportunities to take cash and possessions while “helping” the incapacitated individual. If a person has not executed a Durable General Power of Attorney and/or a Durable Healthcare Power of Attorney and becomes incapacitated, a family member or friend must obtain a Court Order under a state’s Guardianship Law in order to have the legal authority to make personal, financial, legal, and healthcare decisions on behalf of the incapacitated loved one or friend. Because a ruling of “incapacity” and an appointment of a guardian involves the curtailing of many important rights of the individual, a state’s Guardianship Law usually requires clear and convincing proof before a court will act. A guardian can be appointed only if the Court finds that a person is impaired in such a way that he is partially or totally unable to meet essential requirements for his physical health and safety or to manage his financial or legal matters. Notice must be given to the alleged incapacitated person and there is a right to request counsel. The Court may appoint an emergency guardian of the person or estate of the person alleged to be incapacitated. Emergency appointments will usually not exceed 20 days for guardian of a person and 30 days for guardian of an estate.
After expiration of the initial emergency order, a full guardianship proceeding must take place. The Court must consider expert testimony on the person’s condition and the extent of his ability to make and communicate decisions; the availability of family, friends, or other support; the existence of Durable Powers of Attorney or Trusts; and the duration of the proposed guardianship, as well as any medical, psychological, and social issues. The Court must also consider if lesser services or restrictions can be used or required to meet the person’s needs so that the goal of enabling the person to function independently can be achieved. The alleged incapacitated person is required to attend a hearing before the appropriate Court where the petition was filed unless excused, for example, by a doctor who says that it would be harmful for the person to attend the hearing. The testimony by a qualified person such as a psychiatrist or other healthcare provider must establish by clear and convincing evidence that the person is incapacitated and that the person needs a guardian before a guardian will be appointed by the Court.
If incapacity and the need for a guardian are established, the Court will appoint a guardian of the person and/or estate with full or limited powers and duties, as described in the Court Order appointing the guardian. Generally, it is the duty of the guardian to assert the rights and best interests and to respect the expressed wishes and preferences of the incapacitated person to the greatest possible extent. The guardian must also encourage the incapacitated person to participate in all decisions which affect him to the maximum extent of his abilities. Guardians of the estate must file annual reports regarding the management of the incapacitated person’s legal and financial matters. If, after appointment of a guardian, a person regains the capacity to make decisions for himself, a petition can be submitted to the Court to review the need for a guardianship, and to reverse the guardianship if appropriate.
Creating an appropriate Durable General Power of Attorney governing personal, financial, and legal decisions and a Durable Healthcare Power of Attorney governing healthcare and social service decisions, usually makes guardianship proceedings unnecessary. It is more efficient, effective, and much less expensive and is highly recommended.